By Madeleine Kearns
Thursday, May 14, 2020
In the latest installment of our dystopian black comedy, Biological
Sex v. Gender Identity, using the scientifically accurate term “males” to
refer to boys who “identify” as girls is enough to land you in contempt of
court.
District Judge Robert Chatigny, during an April 16
conference call, chastised
the attorneys who are contesting Connecticut’s transgender sports policy on
behalf of three female high-school athletes. During the call, as reported first
by National Review’s Jack Crowe, who obtained a transcript, Chatigny
said that using the term “male” to refer to — well, male athletes — was “very
provocative,” tantamount to “bullying.” Thereafter, in his court, it would be
unacceptable, he warned.
Never mind that the two transgender athletes in question
were born male and lived unambiguously as such until several years ago, when,
in their late teens, they began socially “identifying” as females and competing
with girls. Enabled by their state’s athletic conference, the pair have,
between them, claimed 15 women’s state-championship titles and deprived
countless more girls of the opportunity to participate in races and compete for
scholarships.
How can you parse such blatant injustice? How can you
view perpetrators as the victims? The only way to do this is to believe, as the
ACLU attorneys claim to believe, that the boys — declaring themselves to be
female — are female. In this instance, the person they are required to
convince is not the average American, but the presiding judge. Luckily for
them, he has already decided in their favor.
During the call, Chatigny told Roger Brooks of Alliance
Defending Freedom, the girls’ lead attorney:
This isn’t a case involving males
who have decided that they want to run in the girls’ events. This is a case
about girls who say that transgender girls should not be allowed to run in the
girls’ events. So going forward, we will not refer to the proposed intervenors
as “males”; understood?
The problem is obvious. How is Brooks supposed to advance
an argument based on the sex differences between the female plaintiffs and the
athletes at issue if he is prohibited from referring to those sex differences?
Even while explaining his argument in his initial response, Brooks proved that
upholding Chatigny’s order would be impossible if he were to seriously
represent his clients’ interests. Brooks said:
Gender identity is not the point of
this case. The point of this case is physiology of bodies driven by chromosomes
and the documented athletic advantage that comes from a male body, male
hormones, and male puberty in particular.
Surely it should be up to the defendant, not the judge,
to argue against Brooks. Only last week, the Supreme Court reasserted the
importance of impartiality in the courts in United States v. Sineneng-Smith,
writing, “We rely on the parties to frame the issues for decision and assign to
courts the role of neutral arbiter of matters the parties present.”
In saying “This isn’t a case involving males,” then,
Chatigny has skipped past the pleadings, evidence, arguments, and trial and
arrived at his preconceived verdict. That’s why Brooks and his team have filed
a motion that the judge recuse himself.
This case is about more than one loose-cannon judge, even
if he does have a history of dubious sympathies. (“In
12 child-pornography cases, Judge Chatigny imposed a sentence either at or more
lenient than the recommended minimum,” the Washington Times reported
when the judge was nominated by Obama to the federal appeals court in 2010.)
In the April 16th conference call, Chatigny insisted that
the term “transgender females” was “consistent with science, common practice,
and perhaps human decency.” But, in fact, only the girls’ legal team had
submitted scientific testimony to the court. What scientific evidence or
consensus is he referring to?
The fact is that, “on the basis of sex” (the words of
Title IX, around which the case revolves), there is no plausible, material
basis for describing as “female” any individuals who have wholly and
unambiguously male bodies, from their chromosomes to their reproductive organs.
Arguments premised on “gender identity” are altogether different: They are
metaphysical, not material. In “gender identity” theory, instead of a person being
a body (as with the argument of biological sex) a person’s true self is located
in a body, the nature of which they are free to declare. Because
subscribers to “gender identity” theory believe that language is reality,
describing a person (however accurately) as belonging to the sex opposite to
the sex with which they identify is, they claim, a literal threat to the
individual’s existence. But taken apart, this prohibition on “misgendering” (a
word coined only in the last decade) is merely a new form of blasphemy. What it
really comes down to is I find that offensive! Well, so what? As I’ve
written before, for the British news site UnHerd:
[Imagine] if an atheist wanted to
have a debate with a Christian about the existence of God. But that, as a
condition of the debate, the Christian demanded that the atheist not blaspheme,
as well as refer to him throughout as a “child of God”. Further, imagine if
those facilitating the debate expected the atheist to acquiesce to this demand
or else be considered malicious or ignorant. This is precisely what is
happening with the transgender debate every time a non-believer feels obligated
to use words such as “transgender”, “gender identity”, or pronouns that do not
match the sex of his or her opponent.
In a free society, I suspect that our response to the
believer in the above scenario would be to give him short shrift. But in a
theocracy, the believer’s word is final. Perniciously, in the guise of
“courtesy,” this thinking in relation to gender identity has become the
prevailing wisdom.
Even New York Magazine’s Andrew Sullivan, who has
written cogently and convincingly on this subject in the past, tweeted in
support of Chatigny:
I’m with the judge. Calling trans
females “male” is pointlessly offensive. “Trans female” is more accurate. Why
does the opposition have to be so callous and hurtful? Their case remains solid
without any hurtful slurs. https://twitter.com/nro/status/1259801362629525509
Far from “calling” them names (the correct adjective is
“describing”), and far from being a “slur” (the correct noun is “fact”), the
term “males” in reference to the individuals in question is both legally precise
and scientifically accurate. As for being “callous” and “hurtful,” the only
people suggesting that it’s an insult to be male are gender activists
themselves.
The Department of Justice put it well last month when it
issued its statement on the Connecticut case. “In our pluralistic society we
generally try to accommodate how individuals desire to live their lives up to
the point where those desires impinge on the other people’s rights,” said
Attorney General William Barr “Allowing
biological males to compete in all-female sports deprives women of the
opportunity to participate fully and fairly in sports and is fundamentally
unfair to female athletes.” Yes, of course, there are all sorts of social
situations in which we avoid the plain truth to protect other peoples’ feelings
(“No, I can’t tell that you’ve put on weight,” “This fruitcake is delicious”).
And in interpersonal and social contexts many people, myself included, don’t
mind calling people of good faith what they wish to be called. But in a court
of law — as in a public debate — forbidding precise terminology is a tragically
naïve concession to make. In making it, one sacrifices arguments as well as
principles.
Throughout this country, in the media and in government,
the pusillanimity of those who accept the reality of biological sex has proven
disastrous, facilitating a monstrous abuse of language, the establishment of an
orthodoxy that very few people — observing the facts objectively — could agree
with. Now there’s the threat that this dogma will also carry the force of law.
There is something comically, albeit tragically, absurd in all this — that in
the drama of Biological Sex v. Gender Identity, the restoration of
sanity now depends, in part, on three straight-talking teen girls.
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